(navigation image)
Home American Libraries | Canadian Libraries | Universal Library | Community Texts | Project Gutenberg | Children's Library | Biodiversity Heritage Library | Additional Collections
Search: Advanced Search
Anonymous User (login or join us)
Upload
See other formats

Full text of "Americans with Disabilities Act Questions and Answers"

Kf.739 THE AMERICANS WITH 

%& DISABILITIES ACT: 

2002 QUESTIONS AND ANSWERS 



THE AMERICANS WITH 
DISABILITIES ACT: 

QUESTIONS AND ANSWERS 




Equal Employment 
Opportunity Commission 




U.S. Department of Justice 
Civil Rights Division 



The Americans with 
Disabilities Act 



Questions and Answers 



Introduction 



Introduction 



Barriers to employment, transportation, public accommodations, public 
services, and telecommunications have imposed staggering economic and 
social costs on American society and have undermined our well-intentioned 
efforts to educate, rehabilitate, and employ individuals with disabilities. By 
breaking down these barriers, the Americans with Disabilities Act (ADA) 
will enable society to benefit from the skills and talents of individuals with 
disabilities, will allow us all to gain from their increased purchasing power 
and ability to use it, and will lead to fuller, more productive lives for all 
Americans. 

The Americans with Disabilities Act gives civil rights protections to 
individuals with disabilities similar to those provided to individuals on the 
basis of race, color, sex, national origin, age, and religion. It guarantees 
equal opportunity for individuals with disabilities in public accommodations, 
employment, transportation, State and local government services, and 
telecommunications. 

Fair, swift, and effective enforcement of this landmark civil rights 
legislation is a high priority of the Federal Government. This booklet is 
designed to provide answers to some of the most often asked questions about 
the ADA. 

For answers to additional questions, call the ADA Information Line 

800-514-0301 (voice) 
800-514-0383 (TTY) 

Additional ADA resources are listed in the 
Resources section of this document, page 29. 



May 2002 



Table of Contents 



Contents 



Page 

Questions and Answers 

Employment 1 

State and Local Governments 16 

Public Accommodations 20 

Miscellaneous 27 

Resources 29 



Employment 



Employment 



Q. What employers are covered by title I of the ADA, and when is the 
coverage effective? 

A. The title I employment provisions apply to private employers, State and 
local governments, employment agencies, and labor unions. Employers 
with 25 or more employees were covered as of July 26, 1992. 
Employers with 15 or more employees were covered two years later, 
beginning July 26, 1994. 

Q. What practices and activities are covered by the employment 
nondiscrimination requirements? 

A. The ADA prohibits discrimination in all employment practices, including 
job application procedures, hiring, firing, advancement, compensation, 
training, and other terms, conditions, and privileges of employment. It 
applies to recruitment, advertising, tenure, layoff, leave, fringe benefits, 
and all other employment-related activities. 

Q. Who is protected from employment discrimination? 

A. Employment discrimination is prohibited against "qualified individuals 
with disabilities." This includes applicants for employment and 
employees. An individual is considered to have a "disability" if s/he has 
a physical or mental impairment that substantially limits one or more 
major life activities, has a record of such an impairment, or is regarded 
as having such an impairment. Persons discriminated against because 
they have a known association or relationship with an individual with a 
disability also are protected. 

The first part of the definition makes clear that the ADA applies to 
persons who have impairments and that these must substantially limit 
major life activities such as seeing, hearing, speaking, walking, 
breathing, performing manual tasks, learning, caring for oneself, and 
working. An individual with epilepsy, paralysis, HIV infection, AIDS, a 
substantial hearing or visual impairment, mental retardation, or a 
specific learning disability is covered, but an individual with a minor, 



Employment 



nonchronic condition of short duration, such as a sprain, broken limb, or the 
flu, generally would not be covered. 

The second part of the definition protecting individuals with a record of 
a disability would cover, for example, a person who has recovered from 
cancer or mental illness. 

The third part of the definition protects individuals who are regarded as 
having a substantially limiting impairment, even though they may not 
have such an impairment. For example, this provision would protect a 
qualified individual with a severe facial disfigurement from being denied 
employment because an employer feared the "negative reactions" of 
customers or co-workers. 

Q. Who is a "qualified individual with a disability"? 

A. A qualified individual with a disability is a person who meets legitimate 
skill, experience, education, or other requirements of an employment 
position that s/he holds or seeks, and who can perform the "essential 
functions" of the position with or without reasonable accommodation. 
Requiring the ability to perform "essential" functions assures that an 
individual with a disability will not be considered unqualified simply 
because of inability to perform marginal or incidental job functions. If 
the individual is qualified to perform essential job functions except for 
limitations caused by a disability, the employer must consider whether 
the individual could perform these functions with a reasonable 
accommodation. If a written job description has been prepared in 
advance of advertising or interviewing applicants for a job, this will be 
considered as evidence, although not conclusive evidence, of the 
essential functions of the job. 

Q. Does an employer have to give preference to a qualified applicant 
with a disability over other applicants? 

A. No. An employer is free to select the most qualified applicant available 
and to make decisions based on reasons unrelated to a disability. For 
example, suppose two persons apply for a job as a typist and an 
essential function of the job is to type 75 words per minute accurately. 



Employment 



One applicant, an individual with a disability, who is provided with a 
reasonable accommodation for a typing test, types 50 words per minute; 
the other applicant who has no disability accurately types 75 words per 
minute. The employer can hire the applicant with the higher typing 
speed, if typing speed is needed for successful performance of the job. 

What limitations does the ADA impose on medical examinations 
and inquiries about disability? 

An employer may not ask or require a job applicant to take a medical 
examination before making a job offer. It cannot make any pre- 
employment inquiry about a disability or the nature or severity of a 
disability. An employer may, however, ask questions about the ability 
to perform specific job functions and may, with certain limitations, ask 
an individual with a disability to describe or demonstrate how s/he 
would perform these functions. 

An employer may condition a job offer on the satisfactory result of a 
post-offer medical examination or medical inquiry if this is required of 
all entering employees in the same job category. A post-offer 
examination or inquiry does not have to be job-related and consistent 
with business necessity. 

However, if an individual is not hired because a post-offer medical 
examination or inquiry reveals a disability, the reason(s) for not hiring 
must be job-related and consistent with business necessity. The 
employer also must show that no reasonable accommodation was 
available that would enable the individual to perform the essential job 
functions, or that accommodation would impose an undue hardship. A 
post-offer medical examination may disqualify an individual if the 
employer can demonstrate that the individual would pose a "direct 
threat" in the workplace (i.e., a significant risk of substantial harm to the 
health or safety of the individual or others) that cannot be eliminated or 
reduced below the "direct threat" level through reasonable 
accommodation. Such a disqualification is job-related and consistent 
with business necessity. A post-offer medical examination may not 
disqualify an individual with a disability who is currently able to perform 
essential job functions because of speculation that the disability may 
cause a risk of future injury. 

3 



Employment 



After a person starts work, a medical examination or inquiry of an employee 
must be job-related and consistent with business necessity. Employers may 
conduct employee medical examinations where there is evidence of a job 
performance or safety problem, examinations required by other Federal 
laws, examinations to determine current "fitness" to perform a particular job, 
and voluntary examinations that arc part of employee health programs. 

Information from all medical examinations and inquiries must be kept 
apart from general personnel files as a separate, confidential medical 
record, available only under limited conditions. 

Tests for illegal use of drugs are not medical examinations under the 
ADA and are not subject to the restrictions of such examinations. 

Q. When can an employer ask an applicant to "self-identify" as having 
a disability? 

A. Federal contractors and subcontractors who are covered by the 

affirmative action requirements of section 503 of the Rehabilitation Act 
of 1973 may invite individuals with disabilities to identify themselves on 
a job application form or by other pre-employment inquiry, to satisfy the 
section 503 affirmative action requirements. Employers who request 
such information must observe section 503 requirements regarding the 
manner in which such information is requested and used, and the 
procedures for maintaining such information as a separate, confidential 
record, apart from regular personnel records. 

A pre-employment inquiry about a disability is allowed if required by 
another Federal law or regulation such as those applicable to disabled 
veterans and veterans of the Vietnam era. Pre-employment inquiries 
about disabilities may be necessary under such laws to identify 
applicants or clients with disabilities in order to provide them with 
required special services. 



Employment 



Q. Does the ADA require employers to develop written job 
descriptions? 

A. No. The ADA does not require employers to develop or maintain job 
descriptions. However, a written job description that is prepared before 
advertising or interviewing applicants for a job will be considered as 
evidence along with other relevant factors. If an employer uses job 
descriptions, they should be reviewed to make sure they accurately 
reflect the actual functions of a job. A job description will be most 
helpful if it focuses on the results or outcome of a job function, not 
solely on the way it customarily is performed. A reasonable 
accommodation may enable a person with a disability to accomplish a 
job function in a manner that is different from the way an employee who 
is not disabled may accomplish the same function. 

Q. What is "reasonable accommodation"? 

A. Reasonable accommodation is any modification or adjustment to a job 
or the work environment that will enable a qualified applicant or 
employee with a disability to participate in the application process or to 
perform essential job functions. Reasonable accommodation also 
includes adjustments to assure that a qualified individual with a disability 
has rights and privileges in employment equal to those of employees 
without disabilities. 

Q. What are some of the accommodations applicants and employees 
may need? 

A. Examples of reasonable accommodation include making existing 
facilities used by employees readily accessible to and usable by an 
individual with a disability; restructuring a job; modifying work 
schedules; acquiring or modifying equipment; providing qualified 
readers or interpreters; or appropriately modifying examinations, 
training, or other programs. Reasonable accommodation also may 
include reassigning a current employee to a vacant position for which 
the individual is qualified, if the person is unable to do the original job 
because of a disability even with an accommodation. However, there is 
no obligation to find a position for an applicant who is not qualified for 



Employment 



the position sought. Employers are not required to lower quality or quantity 
standards as an accommodation; nor are they obligated to provide personal 
use items such as glasses or hearing aids. 

The decision as to the appropriate accommodation must be based on the 
particular facts of each case. In selecting the particular type of 
reasonable accommodation to provide, the principal test is that of 
effectiveness, i.e., whether the accommodation will provide an 
opportunity for a person with a disability to achieve the same level of 
performance and to enjoy benefits equal to those of an average, similarly 
situated person without a disability. However, the accommodation does 
not have to ensure equal results or provide exactly the same benefits. 

Q. When is an employer required to make a reasonable 
accommodation? 

A. An employer is only required to accommodate a "known" disability of a 
qualified applicant or employee. The requirement generally will be 
triggered by a request from an individual with a disability, who 
frequently will be able to suggest an appropriate accommodation. 
Accommodations must be made on an individual basis, because the 
nature and extent of a disabling condition and the requirements of a job 
will vary in each case. If the individual does not request an 
accommodation, the employer is not obligated to provide one except 
where an individual's known disability impairs his/her ability to know 
of, or effectively communicate a need for, an accommodation that is 
obvious to the employer. If a person with a disability requests, but 
cannot suggest, an appropriate accommodation, the employer and the 
individual should work together to identify one. There are also many 
public and private resources that can provide assistance without cost. 

Q. What are the limitations on the obligation to make a reasonable 
accommodation? 

A. The individual with a disability requiring the accommodation must be 
otherwise qualified, and the disability must be known to the employer. 
In addition, an employer is not required to make an accommodation if it 
would impose an "undue hardship" on the operation of the employer's 



Employment 



business. "Undue hardship" is defined as an "action requiring significant 
difficulty or expense" when considered in light of a number of factors. These 
factors include the nature and cost of the accommodation in relation to the 
size, resources, nature, and structure of the employer's operation. Undue 
hardship is determined on a case-by-case basis. Where the facility making 
the accommodation is part of a larger entity, the structure and overall 
resources of the larger organization would be considered, as well as the 
financial and administrative relationship of the facility to the larger 
organization. In general, a larger employer with greater resources would be 
expected to make accommodations requiring greater effort or expense than 
would be required of a smaller employer with fewer resources. 

If a particular accommodation would be an undue hardship, the 
employer must try to identify another accommodation that will not pose 
such a hardship. Also, if the cost of an accommodation would impose 
an undue hardship on the employer, the individual with a disability 
should be given the option of paying that portion of the cost which 
would constitute an undue hardship or providing the accommodation. 

Must an employer modify existing facilities to make them 
accessible? 

The employer's obligation under title I is to provide access for an 
individual applicant to participate in the job application process, and for 
an individual employee with a disability to perform the essential 
functions of his/her job, including access to a building, to the work site, 
to needed equipment, and to all facilities used by employees. For 
example, if an employee lounge is located in a place inaccessible to an 
employee using a wheelchair, the lounge might be modified or 
relocated, or comparable facilities might be provided in a location that 
would enable the individual to take a break with co-workers. The 
employer must provide such access unless it would cause an undue 
hardship. 

Under title I, an employer is not required to make its existing facilities 
accessible until a particular applicant or employee with a particular 
disability needs an accommodation, and then the modifications should 
meet that individual's work needs. However, employers should 



Employment 



consider initiating changes that will provide general accessibility, particularly 
for job applicants, since it is likely that people with disabilities will be 
applying for jobs. The employer does not have to make changes to provide 
access in places or facilities that will not be used by that individual for 
employment-related activities or benefits. 

Q. Can an employer be required to reallocate an essential function of a 
job to another employee as a reasonable accommodation? 

A. No. An employer is not required to reallocate essential functions of a 
job as a reasonable accommodation. 

Q. Can an employer be required to modify, adjust, or make other 

reasonable accommodations in the way a test is given to a qualified 
applicant or employee with a disability? 

A. Yes. Accommodations may be needed to assure that tests or 

examinations measure the actual ability of an individual to perform job 
functions rather than reflect limitations caused by the disability. Tests 
should be given to people who have sensory, speaking, or manual 
impairments in a format that does not require the use of the impaired 
skill, unless it is a job-related skill that the test is designed to measure. 

Q. Can an employer maintain existing production/performance 
standards for an employee with a disability? 

A. An employer can hold employees with disabilities to the same standards 
of production/performance as other similarly situated employees 
without disabilities for performing essential job functions, with or 
without reasonable accommodation. An employer also can hold 
employees with disabilities to the same standards of production/ 
performance as other employees regarding marginal functions unless the 
disability affects the person's ability to perform those marginal 
functions. If the ability to perform marginal functions is affected by the 
disability, the employer must provide some type of reasonable 
accommodation such as job restructuring but may not exclude an 
individual with a disability who is satisfactorily performing a job's 
essential functions. 



8 



Employment 



Q. Can an employer establish specific attendance and leave policies? 

A, An employer can establish attendance and leave policies that are uniformly 
applied to all employees, regardless of disability, but may not refuse leave 
needed by an employee with a disability if other employees get such leave. 
An employer also may be required to make adjustments in leave policy as a 
reasonable accommodation. The employer is not obligated to provide 
additional paid leave, but accommodations may include leave flexibility and 
unpaid leave. 

A uniformly applied leave policy does not violate the ADA because it 
has a more severe effect on an individual because of his/her disability. 
However, if an individual with a disability requests a modification of 
such a policy as a reasonable accommodation, an employer may be 
required to provide it, unless it would impose an undue hardship. 

Q. Can an employer consider health and safety when deciding 
whether to hire an applicant or retain an employee with a 
disability? 

A. Yes. The ADA permits employers to establish qualification standards 
that will exclude individuals who pose a direct threat — i.e., a 
significant risk of substantial harm — to the health or safety of the 
individual or of others, if that risk cannot be eliminated or reduced 
below the level of a "direct threat" by reasonable accommodation. 
However, an employer may not simply assume that a threat exists; the 
employer must establish through objective, medically supportable 
methods that there is significant risk that substantial harm could occur in 
the workplace. By requiring employers to make individualized 
judgments based on reliable medical or other objective evidence rather 
than on generalizations, ignorance, fear, patronizing attitudes, or 
stereotypes, the ADA recognizes the need to balance the interests of 
people with disabilities against the legitimate interests of employers in 
maintaining a safe workplace. 



Employment 



Q. Are applicants or employees who are currently illegally using drugs 
covered by the ADA? 

A. No. Individuals who currently engage in the illegal use of drugs are 

specifically excluded from the definition of a "qualified individual with a 
disability" protected by the ADA when the employer takes action on the 
basis of their drug use. 

Q. Is testing for the illegal use of drugs permissible under the ADA? 

A. Yes. A test for the illegal use of drugs is not considered a medical 
examination under the ADA; therefore, employers may conduct such 
testing of applicants or employees and make employment decisions 
based on the results. The ADA does not encourage, prohibit, or 
authorize drug tests. 

If the results of a drug test reveal the presence of a lawfully prescribed 
drug or other medical information, such information must be treated as 
a confidential medical record. 

Q. Are alcoholics covered by the ADA? 

A. Yes. While a current illegal user of drugs is not protected by the ADA 
if an employer acts on the basis of such use, a person who currently uses 
alcohol is not automatically denied protection. An alcoholic is a person 
with a disability and is protected by the ADA if s/he is qualified to 
perform the essential functions of the job. An employer may be 
required to provide an accommodation to an alcoholic. However, an 
employer can discipline, discharge or deny employment to an alcoholic 
whose use of alcohol adversely affects job performance or conduct. An 
employer also may prohibit the use of alcohol in the workplace and can 
require that employees not be under the influence of alcohol. 

Q. Does the ADA override Federal and State health and safety laws? 

A. The ADA does not override health and safety requirements established 
under other Federal laws even if a standard adversely affects the 
employment of an individual with a disability. If a standard is required 



10 



nployment 



by another Federal law, an employer must comply with it and does not 
have to show that the standard is job related and consistent with 
business necessity. For example, employers must conform to health and 
safety requirements of the U.S. Occupational Safety and Health 
Administration. However, an employer still has the obligation under the 
ADA to consider whether there is a reasonable accommodation, 
consistent with the standards of other Federal laws, that will prevent 
exclusion of qualified individuals with disabilities who can perform jobs 
without violating the standards of those laws. If an employer can 
comply with both the ADA and another Federal law, then the employer 
must do so. 

The ADA does not override State or local laws designed to protect 
public health and safety, except where such laws conflict with the ADA 
requirements. If there is a State or local law that would exclude an 
individual with a disability from a particular job or profession because of 
a health or safety risk, the employer still must assess whether a 
particular individual would pose a "direct threat" to health or safety 
under the ADA standard. If such a "direct threat" exists, the employer 
must consider whether it could be eliminated or reduced below the level 
of a "direct threat" by reasonable accommodation. An employer cannot 
rely on a State or local law that conflicts with ADA requirements as a 
defense to a charge of discrimination. 

Q. How does the ADA affect workers' compensation programs? 

A. Only injured workers who meet the ADA's definition of an "individual 
with a disability" will be considered disabled under the ADA, regardless 
of whether they satisfy criteria for receiving benefits under workers' 
compensation or other disability laws. A worker also must be 
"qualified" (with or without reasonable accommodation) to be protected 
by the ADA. Work-related injuries do not always cause physical or 
mental impairments severe enough to "substantially limit" a major life 
activity. Also, many on-the-job injuries cause temporary impairments 
which heal within a short period of time with little or no long-term or 
permanent impact. Therefore, many injured workers who qualify for 
benefits under workers' compensation or other disability benefits laws 



11 



Employment 



may not be protected by the ADA. An employer must consider work- 
related injuries on a case-by-case basis to know if a worker is protected by 
the ADA. 

An employer may not inquire into an applicant's workers' compensation 
history before making a conditional offer of employment. After making 
a conditional job offer, an employer may inquire about a person's 
workers' compensation history in a medical inquiry or examination that 
is required of all applicants in the same job category. However, even 
after a conditional offer has been made, an employer cannot require a 
potential employee to have a medical examination because a response to 
a medical inquiry (as opposed to results from a medical examination) 
shows a previous on-the-job injury unless all applicants in the same job 
category are required to have an examination. Also, an employer may 
not base an employment decision on the speculation that an applicant 
may cause increased workers' compensation costs in the future. 
However, an employer may refuse to hire, or may discharge an 
individual who is not currently able to perform a job without posing a 
significant risk of substantial harm to the health or safety of the 
individual or others, if the risk cannot be eliminated or reduced by 
reasonable accommodation. 

An employer may refuse to hire or may fire a person who knowingly 
provides a false answer to a lawful post-offer inquiry about his/her 
condition or worker's compensation history. 

An employer also may submit medical information and records 
concerning employees and applicants (obtained after a conditional job 
offer) to state workers' compensation offices and "second injury" funds 
without violating ADA confidentiality requirements. 

Q. What is discrimination based on "relationship or association" 
under the ADA? 

A. The ADA prohibits discrimination based on relationship or association 
in order to protect individuals from actions based on unfounded 
assumptions that their relationship to a person with a disability would 
affect their job performance, and from actions caused by bias or 



12 



Employment 



misinformation concerning certain disabilities. For example, this provision 
would protect a person whose spouse has a disability from being denied 
employment because of an employer's unfounded assumption that the 
applicant would use excessive leave to care for the spouse. It also would 
protect an individual who does volunteer work for people with AIDS from a 
discriminatory employment action motivated by that relationship or 
association. 

Q. How are the employment provisions enforced? 

A. The employment provisions of the ADA are enforced under the same 
procedures now applicable to race, color, sex, national origin, and 
religious discrimination under title VII of the Civil Rights Act of 1964, 
as amended, and the Civil Rights Act of 1991 . Complaints regarding 
actions that occurred on or after July 26, 1992, may be filed with the 
Equal Employment Opportunity Commission or designated State human 
rights agencies. Available remedies will include hiring, reinstatement, 
promotion, back pay, front pay, restored benefits, reasonable 
accommodation, attorneys' fees, expert witness fees, and court costs. 
Compensatory and punitive damages also may be available in cases of 
intentional discrimination or where an employer fails to make a good 
faith effort to provide a reasonable accommodation. 

Q. What financial assistance is available to employers to help them 
make reasonable accommodations and comply with the ADA? 

A. A special tax credit is available to help smaller employers make 

accommodations required by the ADA. An eligible small business may 
take a tax credit of up to $5,000 per year for accommodations made to 
comply with the ADA. The credit is available for one-half the cost of 
"eligible access expenditures" that are more than $250 but less than 
$10,250. 

A full tax deduction, up to $15,000 per year, also is available to any 
business for expenses of removing qualified architectural or 
transportation barriers. Expenses covered include costs of removing 
barriers created by steps, narrow doors, inaccessible parking spaces, 
restroom facilities, and transportation vehicles. Additional information 



13 



Employment 



discussing the tax credits and deductions is contained in the Department of 
Justice's ADA Tax Incentive Packet for Businesses available from the ADA 
Information Line, see page 29. Information about the tax credit and the tax 
deduction can also be obtained from a local IRS office, or by contacting the 
Office of Chief Counsel, Internal Revenue Service. 

Q. What are an employer's recordkeeping requirements under the 
employment provisions of the ADA? 

A. An employer must maintain records such as application forms submitted 
by applicants and other records related to hiring, requests for reasonable 
accommodation, promotion, demotion, transfer, lay-off or termination, 
rates of pay or other terms of compensation, and selection for training 
or apprenticeship for one year after making the record or taking the 
action described (whichever occurs later). If a charge of discrimination 
is filed or an action is brought by EEOC, an employer must save all 
personnel records related to the charge until final disposition of the 
charge. 

Q. Does the ADA require that an employer post a notice explaining its 
requirements? 

A. The ADA requires that employers post a notice describing the 
provisions of the ADA. It must be made accessible, as needed, to 
individuals with disabilities. A poster is available from EEOC 
summarizing the requirements of the ADA and other Federal legal 
requirements for nondiscrimination for which EEOC has enforcement 
responsibility. EEOC also provides guidance on making this 
information available in accessible formats for people with disabilities. 

Q. What resources does the Equal Employment Opportunity 

Commission have available to help employers and people with 
disabilities understand and comply with the employment 
requirements of the ADA? 



14 



Employment 



A. The Equal Employment Opportunity Commission has developed several 
resources to help employers and people with disabilities understand and 
comply with the employment provisions of the ADA. 

Resources include: 

• A Technical Assistance Manual that provides "how-to" guidance on 
the employment provisions of the ADA as well as a resource 
directory to help individuals find specific information. 

• A variety of brochures, booklets, and fact sheets. 

For information on how to contact the Equal Employment Opportunity 
Commission, see page 29. 



15 



State and Local Governments 



State and Local Governments 



Q. Does the ADA apply to State and local governments? 

A. Title II of the ADA prohibits discrimination against qualified 

individuals with disabilities in all programs, activities, and services of 
public entities. It applies to all State and local governments, their 
departments and agencies, and any other instrumentalities or special 
purpose districts of State or local governments. It clarifies the 
requirements of section 504 of the Rehabilitation Act of 1973 for 
public transportation systems that receive Federal financial assistance, 
and extends coverage to all public entities that provide public 
transportation, whether or not they receive Federal financial 
assistance. It establishes detailed standards for the operation of public 
transit systems, including commuter and intercity rail (AMTRAK). 

Q. When do the requirements for State and local governments 
become effective? 

A. In general, they became effective on January 26, 1992. 

Q. How does title II affect participation in a State or local 
government's programs, activities, and services? 

A. A state or local government must eliminate any eligibility criteria for 
participation in programs, activities, and services that screen out or 
tend to screen out persons with disabilities, unless it can establish that 
the requirements are necessary for the provision of the service, 
program, or activity. The State or local government may, however, 
adopt legitimate safety requirements necessary for safe operation if 
they are based on real risks, not on stereotypes or generalizations 
about individuals with disabilities. Finally, a public entity must 
reasonably modify its policies, practices, or procedures to avoid 
discrimination. If the public entity can demonstrate that a particular 
modification would fundamentally alter the nature of its service, 
program, or activity, it is not required to make that modification. 



16 



State and Local Governments 



Q. Does title II cover a public entity's employment policies and 
practices? 

A. Yes. Title II prohibits all public entities, regardless of the size of their 
work force, from discriminating in employment against qualified 
individuals with disabilities. In addition to title II' s employment 
coverage, title I of the ADA and section 504 of the Rehabilitation Act 
of 1973 prohibit employment discrimination against qualified 
individuals with disabilities by certain public entities. 

Q. What changes must a public entity make to its existing facilities 
to make them accessible? 

A. A public entity must ensure that individuals with disabilities are not 
excluded from services, programs, and activities because existing 
buildings are inaccessible. A State or local government's programs, 
when viewed in their entirety, must be readily accessible to and usable 
by individuals with disabilities. This standard, known as "program 
accessibility," applies to facilities of a public entity that existed on 
January 26, 1992. Public entities do not necessarily have to make 
each of their existing facilities accessible. They may provide program 
accessibility by a number of methods including alteration of existing 
facilities, acquisition or construction of additional facilities, relocation 
of a service or program to an accessible facility, or provision of 
services at alternate accessible sites. 

Q. When must structural changes be made to attain program 
accessibility? 

A. Structural changes needed for program accessibility must be made as 
expeditiously as possible, but no later than January 26, 1995. This 
three-year time period is not a grace period; all alterations must be 
accomplished as expeditiously as possible. A public entity that 
employs 50 or more persons must have developed a transition plan by 
July 26, 1992, setting forth the steps necessary to complete such 
changes. 



17 



State and Local Governments 



Q. What is a self-evaluation? 

A. A self-evaluation is a public entity's assessment of its current policies 
and practices. The self-evaluation identifies and corrects those policies 
and practices that are inconsistent with title IPs requirements. All public 
entities must complete a self-evaluation by January 26, 1993. A public 
entity that employs 50 or more employees must retain its self-evaluation 
for three years. Other public entities are not required to retain their self- 
evaluations, but are encouraged to do so because these documents 
evidence a public entity's good faith efforts to comply with title H's 
requirements. 

Q. What does title II require for new construction and alterations? 

A. The ADA requires that all new buildings constructed by a State or 
local government be accessible. In addition, when a State or local 
government undertakes alterations to a building, it must make the 
altered portions accessible. 

Q. How will a State or local government know that a new building is 
accessible? 

A. A State or local government will be in compliance with the ADA for 
new construction and alterations if it follows either of two 
accessibility standards. It can choose either the Uniform Federal 
Accessibility Standards or the Americans with Disabilities Act 
Accessibility Guidelines for Buildings and Facilities, which is the 
standard that must be used for public accommodations and 
commercial facilities under title HI of the ADA. If the State or local 
government chooses the ADA Accessibility Guidelines, it is not 
entitled to the elevator exemption (which permits certain private 
buildings under three stories or under 3,000 square feet per floor to be 
constructed without an elevator). 



18 



State and Local Governments 



Q. What requirements apply to a public entity's emergency telephone 
services, such as 911? 

A. State and local agencies that provide emergency telephone services must 
provide "direct access" to individuals who rely on a TDD or computer 
modem for telephone communication. Telephone access through a third 
party or through a relay service does not satisfy the requirement for direct 
access. Where a public entity provides 911 telephone service, it may not 
substitute a separate seven-digit telephone line as the sole means for 
access to 91 1 services by nonvoice users. A public entity may, however, 
provide a separate seven-digit line for the exclusive use of nonvoice callers 
in addition to providing direct access for such calls to its 91 1 line. 

Q. Does title II require that telephone emergency service systems be 
compatible with all formats used for nonvoice communications? 

A. No. At present, telephone emergency services must only be 

compatible with the Baudot format. Until it can be technically proven 
that communications in another format can operate in a reliable and 
compatible manner in a given telephone emergency environment, a 
public entity would not be required to provide direct access to 
computer modems using formats other than Baudot. 

Q. How will the ADA's requirements for State and local 
governments be enforced? 

A. Private individuals may bring lawsuits to enforce their rights under 
title II and may receive the same remedies as those provided under 
section 504 of the Rehabilitation Act of 1973, including reasonable 
attorney's fees. Individuals may also file complaints with eight 
designated Federal agencies, including the Department of Justice and 
the Department of Transportation. 



19 



Public Accommodations 



Public Accommodations 



Q. What are public accommodations? 

A. A public accommodation is a private entity that owns, operates, leases, or 
leases to, a place of public accommodation. Places of public 
accommodation include a wide range of entities, such as restaurants, 
hotels, theaters, doctors' offices, pharmacies, retail stores, museums, 
libraries, parks, private schools, and day care centers. Private clubs and 
religious organizations are exempt from the ADA's title m 
requirements for public accommodations. 

Q. Will the ADA have any effect on the eligibility criteria used by 
public accommodations to determine who may receive services? 

A. Yes. If a criterion screens out or tends to screen out individuals with 
disabilities, it may only be used if necessary for the provision of the 
services. For instance, it would be a violation for a retail store to have a 
rule excluding all deaf persons from entering the premises, or for a 
movie theater to exclude all individuals with cerebral palsy. More subtle 
forms of discrimination are also prohibited. For example, requiring 
presentation of a driver's license as the sole acceptable means of 
identification for purposes of paying by check could constitute 
discrimination against individuals with vision impairments. This would 
be true if such individuals are ineligible to receive licenses and the use of 
an alternative means of identification is feasible. 

Q. Does the ADA allow public accommodations to take safety factors 
into consideration in providing services to individuals with 
disabilities? 

A. The ADA expressly provides that a public accommodation may exclude 
an individual, if that individual poses a direct threat to the health or 
safety of others that cannot be mitigated by appropriate modifications in 
the public accommodation's policies or procedures, or by the provision 
of auxiliary aids. A public accommodation will be permitted to establish 



20 



Public Accommodation! 



objective safety criteria for the operation of its business; however, any safety 
standard must be based on objective requirements rather than stereotypes or 
generalizations about the ability of persons with disabilities to participate in 
an activity. 

Q. Are there any limits on the kinds of modifications in policies, 
practices, and procedures required by the ADA? 

A. Yes. The ADA does not require modifications that would 

fundamentally alter the nature of the services provided by the public 
accommodation. For example, it would not be discriminatory for a 
physician specialist who treats only burn patients to refer a deaf 
individual to another physician for treatment of a broken limb or 
respiratory ailment. To require a physician to accept patients outside of 
his or her specialty would fundamentally alter the nature of the medical 
practice. 

Q. What kinds of auxiliary aids and services are required by the ADA 
to ensure effective communication with individuals with hearing or 
vision impairments? 

A. Appropriate auxiliary aids and services may include services and devices 
such as qualified interpreters, assistive listening devices, notetakers, and 
written materials for individuals with hearing impairments; and qualified 
readers, taped texts, and brailled or large print materials for individuals 
with vision impairments. 

Q. Are there any limitations on the ADA's auxiliary aids 
requirements? 

A. Yes. The ADA does not require the provision of any auxiliary aid that 
would result in an undue burden or in a fundamental alteration in the 
nature of the goods or services provided by a public accommodation. 
However, the public accommodation is not relieved from the duty to 
furnish an alternative auxiliary aid, if available, that would not result in a 
fundamental alteration or undue burden. Both of these limitations are 
derived from existing regulations and caselaw undersSection 504 of the 
Rehabilitation Act and are to be determined on a case-by-case basis. 



21 



Public Accommodations 



Q. Will restaurants be required to have brailled menus? 

A. No, not if waiters or other employees are made available to read the 
menu to a blind customer. 

Q. Will a clothing store be required to have brailled price tags? 

A. No, not if sales personnel could provide price information orally upon 
request. 

Q. Will a bookstore be required to maintain a sign language 
interpreter on its staff in order to communicate with deaf 
customers? 

A. No, not if employees communicate by pen and notepad when 
necessary. 

Q. Are there any limitations on the ADA's barrier removal 
requirements for existing facilities? 

A. Yes. Barrier removal need be accomplished only when it is "readily 
achievable" to do so. 

Q. What does the term "readily achievable" mean? 

A. It means "easily accomplishable and able to be carried out without much 
difficulty or expense." 

Q. What are examples of the types of modifications that would be 
readily achievable in most cases? 

A. Examples include the simple ramping of a few steps, the installation of 
grab bars where only routine reinforcement of the wall is required, the 
lowering of telephones, and similar modest adjustments. 

Q. Will businesses need to rearrange furniture and display racks? 



22 



Public Accommodations 



A. Possibly. For example, restaurants may need to rearrange tables and 

department stores may need to adjust their layout of racks and shelves 
in order to permit access to wheelchair users. 

Q. Will businesses need to install elevators? 

A. Businesses are not required to retrofit their facilities to install elevators 
unless such installation is readily achievable, which is unlikely in most 
cases. 

Q. When barrier removal is not readily achievable, what kinds of 
alternative steps are required by the ADA? 

A. Alternatives may include such measures as in-store assistance for 

removing articles from inaccessible shelves, home delivery of groceries, 
or coming to the door to receive or return dry cleaning. 

Q. Must alternative steps be taken without regard to cost? 

A. No, only readily achievable alternative steps must be undertaken. 

Q. How is "readily achievable" determined in a multisite business? 

A. In determining whether an action to make a public accommodation 
accessible would be "readily achievable," the overall size of the parent 
corporation or entity is only one factor to be considered. The ADA also 
permits consideration of the financial resources of the particular facility 
or facilities involved and the administrative or fiscal relationship of the 
facility or facilities to the parent entity. 

Q. Who has responsibility for ADA compliance in leased places of 
public accommodation, the landlord or the tenant? 

A. The ADA places the legal obligation to remove barriers or provide 
auxiliary aids and services on both the landlord and the tenant. The 
landlord and the tenant may decide by lease who will actually make the 
changes and provide the aids and services, but both remain legally 
responsible. 



23 



Public Accommodations 



Q. What does the ADA require in new construction? 

A. The ADA requires that all new construction of places of public 

accommodation, as well as of "commercial facilities" such as office 
buildings, be accessible. Elevators are generally not required in facilities 
under three stories or with fewer than 3,000 square feet per floor, unless the 
building is a shopping center or mall; the professional office of a health care 
provider; a terminal, depot, or other public transit station; or an airport 
passenger terminal. 

Q. Is it expensive to make all newly constructed places of public 
accommodation and commercial facilities accessible? 

A. The cost of incorporating accessibility features in new construction is 
less than one percent of construction costs. This is a small price in 
relation to the economic benefits to be derived from full accessibility in 
the future, such as increased employment and consumer spending and 
decreased welfare dependency. 

Q. Must every feature of a new facility be accessible? 

A. No, only a specified number of elements such as parking spaces and 
drinking fountains must be made accessible in order for a facility to be 
"readily accessible." Certain nonoccupiable spaces such as elevator pits, 
elevator penthouses, and piping or equipment catwalks need not be 
accessible. 

Q. What are the ADA requirements for altering facilities? 

A. All alterations that could affect the usability of a facility must be made in 
an accessible manner to the maximum extent feasible. For example, if 
during renovations a doorway is being relocated, the new doorway must 
be wide enough to meet the new construction standard for accessibility. 
When alterations are made to a primary function area, such as the lobby 
of a bank or the dining area of a cafeteria, an accessible path of travel to 
the altered area must also be provided. The bathrooms, telephones, and 
drinking fountains serving that area must also be made accessible. 



24 



Public Accommodations 



These additional accessibility alterations are only required to the extent that 
the added accessibility costs do not exceed 20% of the cost of the original 
alteration. Elevators are generally not required in facilities under three stories 
or with fewer than 3,000 square feet per floor, unless the building is a 
shopping center or mall; the professional office of a health care provider; a 
terminal, depot, or other public transit station; or an airport passenger 
terminal. 

Q. Does the ADA permit an individual with a disability to sue a 

business when that individual believes that discrimination is about 
to occur, or must the individual wait for the discrimination to 
occur? 

A. The ADA public accommodations provisions permit an individual to 
allege discrimination based on a reasonable belief that discrimination is 
about to occur. This provision, for example, allows a person who uses 
a wheelchair to challenge the planned construction of a new place of 
public accommodation, such as a shopping mall, that would not be 
accessible to individuals who use wheelchairs. The resolution of such 
challenges prior to the construction of an inaccessible facility would 
enable any necessary remedial measures to be incorporated in the 
building at the planning stage, when such changes would be relatively 
inexpensive. 

Q. How does the ADA affect existing State and local building codes? 

A. Existing codes remain in effect. The ADA allows the Attorney General 
to certify that a State law, local building code, or similar ordinance that 
establishes accessibility requirements meets or exceeds the minimum 
accessibility requirements for public accommodations and commercial 
facilities. Any State or local government may apply for certification of 
its code or ordinance. The Attorney General can certify a code or 
ordinance only after prior notice and a public hearing at which 
interested people, including individuals with disabilities, are provided an 
opportunity to testify against the certification. 



25 



Public Accommodations 



Q. What is the effect of certification of a State or local code or 
ordinance? 

A. Certification can be advantageous if an entity has constructed or altered 
a facility according to a certified code or ordinance. If someone later brings 
an enforcement proceeding against the entity, the certification is considered 
"rebuttable evidence" that the State law or local ordinance meets or exceeds 
the minimum requirements of the ADA. In other words, the entity can argue 
that the construction or alteration met the requirements of the ADA because 
it was done in compliance with the State or local code that had been 
certified. 

Q. When are the public accommodations provisions effective? 

A. In general, they became effective on January 26, 1992. 

Q. How will the public accommodations provisions be enforced? 

A. Private individuals may bring lawsuits in which they can obtain court 
orders to stop discrimination. Individuals may also file complaints with 
the Attorney General, who is authorized to bring lawsuits in cases of 
general public importance or where a "pattern or practice" of 
discrimination is alleged. In these cases, the Attorney General may seek 
monetary damages and civil penalties. Civil penalties may not exceed 
$55,000 for a first violation or $1 10,000 for any subsequent violation. 



26 



Miscellaneou; 



Miscellaneous 



Q. Is the Federal government covered by the ADA? 

A. The ADA does not cover the executive branch of the Federal government. 
The executive branch continues to be covered by title V of the Rehabilitation 
Act of 1973, which prohibits Discrimination in services and employment on 
the basis of handicap and which is a model for the requirements of the ADA. 
The ADA, however, does cover Congress and other entities in the legislative 
branch of the Federal government. 

Q. Does the ADA cover private apartments and private homes? 

A. The ADA does not cover strictly residential private apartments and 
homes. If, however, a place of public accommodation, such as a 
doctor's office or day care center, is located in a private residence, 
those portions of the residence used for that purpose are subject to the 
ADA's requirements. 

Q. Does the ADA cover air transportation? 

A. Discrimination by air carriers in areas other than employment is not 
covered by the ADA but rather by the Air Carrier Access Act (49 
U.S.C. 1374 (c)). 

Q. What are the ADA's requirements for public transit buses? 

~> 
A. The Department of Transportation has issued regulations mandating 
accessible public transit vehicles and facilities. The regulations include 
requirements that all new fixed-route, public transit buses be accessible 
and that supplementary paratransit services be provided for those 
individuals with disabilities who cannot use fixed-route bus service. For 
information on how to contact the Department of Transportation, see 
page 29. 



27 



Miscellaneous 



Q. How will the ADA make telecommunications accessible? 

A. The ADA requires the establishment of telephone relay services for 
individuals who use telecommunications devices for deaf persons 
(TDD's) or similar devices. The Federal Communications Commission 
has issued regulations specifying standards for the operation of these 
services. 

Q. Are businesses entitled to any tax benefit to help pay for the cost of 
compliance? 

A. As amended in 1990, the Internal Revenue Code allows a deduction of 
up to $15,000 per year for expenses associated with the removal of 
qualified architectural and transportation barriers. 

The 1990 amendment also permits eligible small businesses to receive a 
tax credit for certain costs of compliance with the ADA. An eligible 
small business is one whose gross receipts do not exceed $1,000,000 or 
whose workforce does not consist of more than 30 full-time workers. 
Qualifying businesses may claim a credit of up to 50 percent of eligible 
access expenditures that exceed $250 but do not exceed $10,250. 
Examples of eligible access expenditures include the necessary and 
reasonable costs of removing architectural, physical, communications, 
and transportation barriers; providing readers, interpreters, and other 
auxiliary aids; and acquiring or modifying equipment or devices. 



28 



Resources 



Telephone Numbers for ADA Information 

This list contains the telephone numbers and Internet addresses of Federal 
agencies and other organizations that provide information about the 
Americans with Disabilities Act and informal guidance in understanding and 
complying with the ADA. 



ADA Information Line 
U.S. Department of Justice 

For ADA publications 

and questions 

800-514-0301 (voice) 800-514-0383 (TTY) 

www.usdoj.gov/cii/ada/adahoml.htm or ada.gov 

U.S. Equal Employment Opportunity Commission 



For publications 
800-669^3362 (voice) 

For questions 
800-669-4000 (voice) 



800-800-3302 (TTY) 



800-669-6820 (TTY) 



www.eeoc.gov 



U.S. Department of Transportation 



ADA Assistance Line for 
regulations and complaints 
888-446-4511 (voice) 

www.fla.dot.gov/oflQce/civ.htm 



TTY: use relay service 



29 



Resources 



Federal Communications Commission 

888-225-5322 (voice) 888-835-5322 (TTY) 

www.fcc.gov/cgb/dro 
U.S. Architectural and Transportation Barriers Compliance Board 

800-872-2253 (voice) 800-993-2822 (TTY) 

www.access-board.gov 

U.S. Department of Labor 
Job Accommodation Network 

800-526-7234 (voice & TTY) 

www.jan.wvu.edu 

U.S. Department of Education 

Regional Disability and Business Technical Assistance Centers 

800-949-4232 (voice & TTY) 

www.adata.org 

U.S. Department of Transportation 
Project Action 

800-659-6428 (voice) TTY: use relay service 

www.proj ectaction.org 



30 



Resources 



Addresses for ADA Information 

U.S. Department of Justice 
Civil Rights Division 
950 Pennsylvania Avenue, NW 
Disability Rights Section - NYAV 
Washington, DC 20530 

U.S. Equal Employment 
Opportunity Commission 
1801 L Street, NW 
Washington, DC 20507 

U.S. Department of Transportation 
Federal Transit Administration 
400 Seventh Street, SW 
Washington, DC 20590-0001 

Federal Communications Commission 
445 12th Street, SW 
Washington, DC 20554 

U.S. Architectural and 
Transportation Barriers 
Compliance Board 
1331 F Street, NW, Suite 1000 
Washington, DC 20004-1111 

This document is available in the following alternate formats for people with 
disabilities: 

- Braille 

- Large Print 

- Audio Cassette 

- Electronic file on computer disk 

Note: Reproduction of this document is encouraged. 



31 

^ L *U.S. Government Printing Office: 2002 —491 -399/6361 1 



I 



I